Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Friday, February 29, 2008

One of the great things about democracy is its responsiveness to crisis. Unfortunately, the motivating crisis tends to center on the re-election of a government. Likewise, the greatest benefit of free (more or less) markets, are the long term aggregate wealth maximization that serves as its (aggregate) social reward. Unfortunately, the long term is paved with short term misfortune.

The reality of both of these insights is nowhere more apparent today than in India. The English newspaper, the Guardian today reported on the pledge by the Indian government to forgive about £7.6bn in agricultural loans. See Randeep Ramesh, India Pledges £7.6bn To Combat Rural Suicides, The Guardian (U.K.) March 1, 2008. The object was to try to stem the rise in suicides among Indfian farmers unable to pay their loans. "In India millions are driven to despair by their inability to pay off loans of a few hundred pounds. Figures show that more than 166,000 farmers have killed themselves since 1997 - a death almost every half an hour. The farm sector is a key part of the economy, employing two-thirds of India's 1.1 billion population." India Pledges £7.6bn To Combat Rural Suicides, The Guardian (U.K.). The finance minister was at pains to suggest that the reason for this great forgiveness was to include Indian farmers in the great economic surge that India has been exdperiencing this decade.

Curiously enough, the consequences of this one time event was viewed somewhat differently by political analysts: "Analysts described the giveaway as the biggest in India's banking history, and said it signalled an early election." Id. What appears as a mercy to some--an effort to use th e state to transfer wealth to the poorest sectors of the economy, can easily appear to be a sophiscated scheme for vote buying by others. ""It is irresponsible economics. To revive agriculture you need to build canals, roads and warehouses, not indulge massive populist sops," said Mohan Guruswamy, director of the Centre for Policy Studies, a Delhi economic thinktank. "Every government now will look at writing off loans to win votes. The neglect has to be stopped but not like this."" Id.

And, indeed, in a world order governed by principles of democracy, the line between state economic policy and corruption of the most fundamental sort is difficult to see. And what appears to be economic policy with a great social mission, may be neither. Where government policy becomes a veil that barely hides a quid pro quo relationship between the electorate and the political classes, the character of the state changes dramatically. States no longer operate for the benefit of the community as a whole, but for the benefit of those classes who seek to control its apparatus. And thus we see the glimmerings of this sort of state enterprise through the loan forgiveness program—a general fighting over the spoils of distribution: “In television interviews, many farmers said they were pleased with the government plan. But some landlords were angry that only those farmers with smallholdings - less than 2 hectares (5 acres) - would benefit from the welfare package. Rival parties said the money was too little too late. The government's Communist allies said many farmers were indebted to private moneylenders and would not get the money, which covers only bank loans. The finance minister said the details of the scheme would silence doubters.” Id. This is the African problem as well. States that serve as little more than institutions for the control and distribution of wealth among those who control its institutions become something other than classical states. Or perhaps they revert to the more traditional form of state. This is not good news for those who still embrace traditional notions of the state and the purpose of its apparatus.

Even so, the policy does have some benefit—suicides will drop for the moment. But only for the moment. The cause of the suicides—the need for loans for the maintenance of enterprises that are not economically viable in the changing economic landscape of India—is postponed. The solution, throwing money at some of the affected farmers, treats the symptom but leaves the problem for the successor government to deal with in turn.

Castro starts this third part with context—the aftermath of the collapse of the Soviet Union and its effect on Cuba. Rather than e discouraged, Castro proudly explains, the Cuban state carried on. “And we decided to press ahead with unchangeable steadiness. That was what we had promised to do under such hypothetical and unbelievable circumstances.” Reflections Lula Part III, supra. (in the Spanish, “Y decidimos seguir adelante con inconmovible firmeza. Así lo habíamos prometido en tan hipotéticas e increíbles circunstancias”). In that spirit, the Cubans have always sought to follow their own star, and have avoided the cult of personality. That last comment reminds Castro of Che Guevara, ironically enough. “I spoke to Lula about Che, briefly outlining his story for him.” Reflections Lula Part III, supra. (in the Spanish, “Le hablé a Lula del Che, haciéndole una breve síntesis de su historia.”). The discussion, a panegyric on the romantic revolutionary, is rosier now that so mush time has passed. There is a bit of the internal musing in the summary, “You didn’t know him, I told him. He was disciplined in voluntary work, in his studies and behavior. He was modest and selfless, and he set an example both in production centers and in combat.” Reflections Lula Part III, supra. (in the Spanish, “Tú no lo conociste, le dije. Era sistemático en el trabajo voluntario, el estudio y la conducta: modesto, desinteresado, daba el ejemplo en los centros de producción y en el combate.”). For a discussion of a fuller version of this sort of reflective panegyric, see Larry Catá Backer, Castro on Che, Law at the End of the Day, October 16, 2007. Yet, the detour has a purpose, it is meant to show , through the example of Che, that Cuban quality of steadfast willingness to follow its own path.

But this sets up the real discussion—the needs of Cuba, the ability of Brazil to meet them, and the similarities in position between the two. Castro devotes a long segment of his discussion to the difficulties of single crop agricultural dependence on sugar and the United States in 1959. He recalled, in his own way, the start of the embargo as a means to pressure him, the accusations of American efforts to use biological and other means to destroy the agricultural productivity of Cuba and the self sacrifice of the Soviet Union in agreeing to pay more than market for the paltry amount of sugar Cuba could squeeze out. And then he analogizes these efforts to the current effects of American pressure on Brazil: “The United States subsidizes its agriculture with tens of billions each year. Why does the U.S. not allow the ethanol you produce freely into the country? They subsidize it brutally, thus denying Brazil income for billions of dollars every year. The wealthy countries do the same, with their production of sugar, oleaginous products and cereals for the production of ethanol.” Reflections Lula Part III, supra. (in the Spanish, “Estados Unidos subsidia su agricultura con decenas de miles de millones cada año. ¿Por qué no dejan entrar libremente en Estados Unidos el etanol que ustedes producen? Lo subsidian de forma brutal, con lo cual a Brasil le arrebatan ingresos por miles de millones de dólares cada año. Lo mismo hacen los países ricos, con su producción de azúcar, oleaginosas y granos para producir etanol.”).

And now to the punch—Brazil has land, power and a free hand to act in the world. Cuba needs all of that. Lula boasts—“ He told me that Brazil is in a privileged position. They have 850 million hectares of land; of these 360 million are part of Amazons State; 400 million of good soil for agriculture, and sugarcane takes up only one percent.” Reflections Lula Part III, supra. (in the Spanish, “Brasil, me dijo, tiene una situación privilegiada. Contamos con 850 millones de hectáreas de tierra; de estas, 360 millones es la parte del Amazonas; 400 millones de buenas tierras para la agricultura, y la caña de azúcar ocupa solamente el uno por ciento.”). Castro responds with a reminder that by his calculations the prices of agricultural products has not risen much in half a century, though the retail price of the end products are now much higher. To Lula’s suggestion that the Brazilian success could be duplicated in Africa, Castro suggests many reasons for doubt.

But Castro must ensure Lula is committed strongly enough to the battle of ideas that has become central to Castro’s measure of allies and enemies. “I spoke to Lula about the Battle of Ideas that we are waging. Fresh news arrives constantly that demonstrates the need for that constant battle. The worst media of our ideological enemies are bent on spreading throughout the world the opinions of some nasty ‘worms’ who cannot even stand to hear the term “socialism” in our heroic and generous country.” Reflections Lula Part III, supra. (in the Spanish, “Le hablé a Lula de la Batalla de Ideas que estábamos librando. Nuevas noticias llegan constantemente, que evidencian la necesidad de esa lucha constante. Los peores órganos de prensa de los enemigos ideológicos se dedican a divulgar por el mundo las opiniones de algunos gusanillos que en nuestro heroico y generoso país ni siquiera desean escuchar la palabra socialismo”). Gusanillos, the home grown variety of gusanos, who tend to reside in Miami and, from Castro’s perspective, control American conceptions of Castro’s ideological program, are the greatest threat.

Consequently, it is in the weakening of revolutionary fervor in Cuba itself poses the greatest danger for Castro. China provides a dangerous example in this regard. It is not clear that the Chinese Communist Party can keep itself firmly in the saddle as the “party in power” while assuming more and more the forms of global engagement using non-Marxist institutions and forms. See, Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives and Free Market Globalism, 14(2) Journal of Transnational Law and Contemporary Problems 337 (2004) (available 14TransLawContempProbs337(2004).pdf). Some isolation may be necessary (though Castro will have to convince Raul Castro of this, and it may be well too late for that). And here Brazil, and its ability to keep the Cuban population contented, comes into play, at least in Castro’s mind. A Lula and a Brazil publicly committed to something like Castro’s ideals, and serving as Cuba’s friend, could go a long way to aiding the (reluctant for Castro) transformation to a globally engaged authoritarian state on the model of China. “We are dealing with imperial capitalism’s vulgar appeal to individual egoism, as it was preached almost 240 years ago by Adam Smith to be the cause of the nation’s wealth, meaning everything should be handled by the market. That would create limitless wealth in an idyllic world.” Reflections Lula Part III, supra. (in the Spanish, “Se trata de la apelación vulgar del capitalismo imperial al egoísmo individual, predicado hace casi 240 años por Adam Smith como la causa de las riquezas de las naciones; es decir, ponerlo todo en manos del mercado. Eso crearía riquezas sin límites en un mundo idílico.”) . The shape of that relationship will take Castro to the last part of his series. Stay tuned.

This conference, a major event in the celebration of the 25th anniversary of the GSU College of Law, will take as its point of departure a highly critical report on American legal education recently issued by the Carnegie Foundation for the Advancement of Teaching: Educating Lawyers. The report calls for fundamental changes in both the structure and content of legal education in the United States to integrate realistic and real-life lawyering experiences throughout the curriculum, and challenges American law schools to produce lawyers who are not only smart problem-solvers but also responsible professionals committed to service of both clients and the larger society. The conference will bring together leading legal educators from both the United States and other countries with leaders from the legal profession.

The Carnegie Foundation’s Report, Educating Lawyers: Preparation for the Profession of Law reminds us that the challenge for legal education requires a linking of the “interests of legal educators with the needs of legal practitioners and with the public the profession is pledged to serve—in other words, fostering what can be called civic professionalism.” Educating Lawyers would reverse the drift of American legal education recast legal education towards a purely academic orientation, recasting legal education as fundamentally professional rather than academic, outward and not inward looking. Educating Lawyers’ focus is almost completely devoted to domestic law. Yet, civic professionalism does not end at the borders of the United States, and American lawyers long ago stopped thinking of national borders as the borders of their professional lives. The law schools have been responding. Many law schools are now wrestling with issues relating to the incorporation of a transnational legal component—including elements of international, comparative, foreign and transnational law—within their teaching and scholarship missions. These changes mirror discussions within the legal academy over a move from a “national law practice” to a multi-jurisdictional practice model of legal education. Yet these two great reform efforts have developed along parallel tracks. This paper looks at the development of these parallel discussions of reform of legal education. The framework is described in Part I. The paper then turns to a critical review of Educating Lawyers, focusing on its basic assumptions that serve as the foundation for the suggestions for the changes proposed. Part III examines the parallel development of the several strands of proposals for the incorporation of non-domestic legal education in American law schools, suggesting first an analytical framework for evaluating these proposals and then evaluating the several forms of incorporation that dominate incorporation of the transborder element in law school curricular, research and service activities. These are divided into five categories—three are elaborations of traditional models and two others, an immersion model and separation model, represent emerging framework structures. Part IV considers these models of integration in light of the foundational model of apprenticeship proposed in Educating Lawyers. It suggests that transborder legal education can be integrated in legal education within the framework of Educating Lawyers but that not all emerging models of such integration are compatible with that framework.

My critical summary of the excellent presentations at the conference follows. Comments welcome!

What follows are my recollections and impressions of many of the speakers who presented their work and thoughts at the conference. Analysis is interwoven with description, though I have sought to err on the side of description. My own conclusions are easy to describe First, it is clear that the profession is moving from objective to subjective frameworks, thus the emphasis on values, morals professionalism and community. It is not for nothing that there is a greater affinity to theology in law. This will reproduce itself on changes in emphasis in legal education. Second, for good or ill, change is coming, but that change will be felt differently among law schools. A combination of resource allocations needs and capacity issues will further erode the mythology of a single education environment in which Americans law schools receive the same education everywhere. The class and status divisions among American law schools will likely increase and solidify as the legal academy moves to accommodate the theories of “Educating Lawyers” within an institutional context in which such considerations are substantially irrelevant. Third, the focus on measurement will be shifting from input to outcome measures. This will also serve to intensify status divisions among American law schools. It will also provide a greater degree of control over the production of both knowledge and law students within the academy. Fourth, greater regulatory control is likely as the legal profession continues to shed its customary law prerogatives and become just another servant of the state.

For a detailed viewing of what each speaker said in their own words, please consult the webcast of the event. Most of the speakers’ papers are also available at the conference website. The abstracts (http://law.gsu.edu/FutureOfLegalEducationConference/abstracts.php#Lauchland) provide a sense of the presentations from the author’s perspective.

The first panel of February 21, 2008, was entitled, “Focus on Law Schools: A New Approach to Preventing Unprofessional Behavior.” The Dean of the Georgia State Law School, Steven Kaminshine, moderated the panel. The panelists included John T. Berry (Legal Division Director, The Florida Bar), Clark Cunningham (Georgia State University Law School), and William Sullivan (Senior Scholar at the Carnegie Foundation and lead author of “Educating Lawyers”).

John Berry spoke of the social control of lawyers. His focus was on the ability of law schools to change (mold) students into certain cultures of behavior. Assimilation into a set of governing norms acceptable to the bench and bar was the goal. However, the actual contours of that behavior norm set went undisclosed. However, he sought to provide a glimpse of the moral framework for lawyer conduct through his experiences at the Florida Bar (especially in connection with his work on disbarments).

He suggested, first, that the greatest need was for “caring hearts.” This requires a change of paradigm for professionalism, both as practiced and as taught. Unprofessional conduct, Mr. Berry suggested, arises form the same source as unethical conduct. Both reflect a particular evil—the cumulative effect of a communal tolerance of small violations and attitudes towards unprofessionalism. That sort of tolerance has led to a number of bad consequences, including low job satisfaction among practitioners, high rates of depression in lawyers and law students, and low social esteem.

The old model for training in professionalism relied mostly on conferences on professionalism, a certain amount of outreach and education programs, and a proclivity for demanding more testing of lawyers. This, Mr. Berry argued, does not work. He asserted that in place of this old model something different ought to be tried. This something different would focus on changing the culture of professionalism and ethics. He would rely for that purpose on a privileging of the “third apprenticeship” described in Educating Lawyers. But it would also focus on a great normative change in the educational and enforcement environment in which lawyers operate. This environmental change would be directed toward producing what Mr. Berry described as principled people and shared values.

For this purpose, Mr. Berry would propose an action plan. First law schools and the bar must work to consciously change behavior among law students and lawyers. This is to be accomplished using current psychological models for the inducement of change in human being. Practical use of the emerging successful tools of social control might be put to good use in this endeavor as well. Second, Mr. Berry would measure these cultural changes using output measures. These measures (as opposed to input measures, the traditional means for evaluating legal education in the United States), ought to create greater incentives toward conformity, especially if these measures came with teeth.

The underlying idea, it seemed to me, was that lawyers are tools that need direction. Lawyers behave badly because they no longer share a core of values that mark them as a unified community. Those values can and must be taught. Modern forms of assimilating shared values are available and ought to be used. And the entire system established for the production of lawyers ought to be bent to this task—one values, one morals, one community.

Clark Cunningham focused on the Carnegie Foundation report itself. He praised “Educating Lawyers” for its independent and outside perspective. It ought to have greater authority because it was produced by social scientists and academics from the humanities, rather than being a product of the community of legal academics or practitioners. Additional value, and authority, ought to derive from its methodology—“Educating Lawyers” is fundamentally comparative in nature, focusing on the communities of lawyers, priests (clergy), and doctors for its perspective. The essence of “Educating Lawyers,” though ought not to be lost. “Educating Lawyers” clearly suggested that the issue was not too much doctrine but rather too little morals and practice elements in legal education.

The moral element of “Educating Lawyers” was highlighted in Professor Cunningham’s description of the work of Bill Sullivan’s work in “Educating Lawyers.” What Professor Cunningham gleaned was a sense that the legal academy (and the lawyers they produced) had abandoned their charges (that is, the public). Both had broken faith with the people they serve. Now serving only themselves, legal academics and the lawyers they produce, they could only bring failure, or at least a reduction of authority, to their respective professions.

My sense was that Professor Cunningham, echoing perhaps some of the faith based notions of Mr. Barry, was extracting from “Educating Lawyers” the foundational notions that lawyers are priests of a sort, that law was theology of another sort, and that the rule of law in this context pointed toward a set of values and process. Success is possible only within the framework of this set of values and process, mimicking notions of Rechtsstaat (process) and Sozialstaat (substance) from European constitutional theory. I wondered whether one could imbue students (much less lawyers) with a single purpose/values other than ones of extreme generality, where the society in which they operate has increasingly rejected privileging a single set of values or culture (to the chagrin, it is true of traditionalists), and that the privileged classes in the legal academy and elsewhere continue to embrace anti-assimilationist, and anti-subordination models. In that context, the fight over values might overwhelm the task of training lawyers.

Still, Professor Cunningham advanced a proposal to attain the one values-one student-one profession framework: the reform of classroom teaching. The classroom is to serve as a simulacra, of sorts, of real life (or real life to the extent of the life experiences of those involved, deficits on that score hopefully to be overcome through well written teacher’s manuals). This would be woven around the idea of ‘practice with integrity and purpose.’ Professor Cunningham draws support for this proposal from the experiences of the medical schools and the extraordinary effect of the Flexner Report of 1910 in the reconstruction of the ethos and methods of medical education.

There are consequences, though, to following the medical school “revaluation of all values” (to borrow from Nietzsche) model. The first is that public opinion must be enflamed to ensure success that was the road to victory for change in the medical education field). Te second, and most interesting consequence, is that the weak schools will have to close. That was the principal and principally benefit effect of the change in teaching methods and philosophy. Financially marginal schools, recalcitrant schools, found themselves unable or unwilling to change. They lost students, accreditation, and ultimately, existence. But the remaining schools prospered.

William Sullivan spoke last. He made three points. First, professionalism matters in practice and education. Second, because professionalism matters, the current educational model must be changed to one tat called “formative education.” Third, formative education requires a realignment of the profession and professional education.

With respect to the first point, Mr. Sullivan reiterated the importance of shared values and community. Professionalism is that community of values, the content of which was not disclosed in any detail, for organizing workers that serves as a model for all workers in the field. Professionalism marks as different the field of legal production (to borrow from Bourdieu). Other fields of labor production are distinguished by their shared vales as (1) entrepreneurial, or (2) managerial (bureaucratic) ethos models. The entrepreneur model is market driven (and for this reason perhaps is valueless or value malleable and a candidate for direction by more value gifted fields of labor). The managerial or bureaucratic fields are characterized by an ethos of reliability and predictability (the framework, of course, of institutional organization). Only the professionalism fields (and especially law and perhaps the priesthood) are sufficiently sheltered from market and managers to permit action based on independent professional judgment above market and institution.

For the nurture of this professionalism ethos (at least in law), a “formative education” model is necessary. This is distinguished by ways of teaching designed to assimilate certain shared communal values and methods of behavior (both personal and professional) within the profession. The price of admission, then, is assimilation. But this is an ancient understanding in traditional cultures, but assumes away, at some level, the privileging of difference. Perhaps difference does not matter within the realm of the professional. That remains to be seen. There might be some comfort, though, from the analogy Mr. Sullivan used to explain “formative education”—law schools, he suggested, ought to be like tennis camp. My sense, though, was that he had seminaries more in mind than tennis, especially given the focus on “verbal deportment” and the acquisition of appropriate sensibilities (though these were also undefined, and necessarily so, in the talk).

That leaves alignment. For this purpose, like Professor Cunningham and Mr. Berry, Mr. Sullivan would have us use the tools of psychology. Education is the great socialization experience. It ought to be more consciously bent to that task. That got me thinking a little. Though a little discomfited by all this talk of the need to impress uniform values and police the borders of community, I thought, “And why not”—Progressives in the country and Marxist-Leninists in Cuba have always understood the importance of education in this regard. Indeed, legal academics (as well as bench and bar) have become especially proficient in the techniques of policing field borders and communal hierarchies. And given the privileging of science and its techniques in the United States, what better and more painless way than through the employment of the tools of psychology. The suggestion would have us marry the science of the manipulation of human behavior with the inculcation of a single set of values. In a sense, that was what Coke suggested to James I (VI) at the famous meeting in Whitehall in the early 17th century when he sought to defend the prerogatives of the bench (and bar) from a more intimate royal involvement. Perhaps this is the meaning of the joinder of process and substance, manners and values, to which the panelists all alluded. But this was not clear.

The second panel of February 21, 2008, was entitled “The New ABA Initiative to Measure Law School Outcomes.” The panel was moderated by Professor Andi Curcio of Georgia State Law School and included Professor Sally Kift (Queensland University of Technology Faculty of Law (Australia)), Professor Richard Johnstone (Griffith Law School (Australia)), and Hulett Askew (ABA Consultant on Legal Education). This panel moved us from the object—values and practice—to its measure.

First to speak was Sally Kift. Her focus was on the measurement of the “value added” provided by law school. For that purpose, she had participated in a long and complex process in to radically revise (renew, I believe, is the word she used) the curriculum to make is suitable for outcome measurement.

For the purpose of these revisions, Professor Kift focused on four institutional and social elements affecting the environment for legal education. First, she identified the legal and non-legal drivers for course elements. Second, she noted the rise of professionalism in legal education and the move away from law practitioners teaching to the bar qualification. Third, she described the move to life long learning (especially with respect to emerging technologies of law, for example globalization). This bespeaks a “new knowledge” economics. Lastly, she identified a focus on employability, and specifically skills.

Professor Kift then briefly described the changes. She started with a description of a “whole-of-course” approach to the curriculum. This, she suggested, parallels the three apprenticeship model of “Educating Lawyers.” The difficulty was in its implementation. For that purpose, she suggested a focus on learning objectives and the identification of course attributes and discipline specific skills. The result could be complex, though complete. The first step required development of tables of core skills. The object is to move from attributes of courses to skills. Three progressive skill levels were built into the model. The second step required the development of a taxonomy within which to embed skills training. The objective was to determine the relationship between course objectives and a demonstration of ability within each aspect of course objective. To assess such attainment, it was necessary to break down course objectives, and its related skills and demonstration components. Step three involved the mapping of these objectives-skills-assessments into grids. The goal was to break down instruction into its smallest reasonable components, that is a component the mastery of which by students could be reasonably assessed, and then grid these components and assessments for every course. When completed each course is supposed to work like a computer program, and every aspect can be assessed, both from a student and a faculty performance perspective.

The good news is the completeness and uniformity. One can be reasonably assured that a particular set of objectives will be taught to generate experience of a known number of skills the mastery of which can be demonstrated by the students. And, in a sense, this system parallels the focus on the search for a uniform and imposable normative (values/ethics) framework through which to teach professionalism to the bar. The bad news is the same. The cost, at least form an American perspective, might touch on issues of academic freedom. Individual faculty members lose a substantial amount of pedagogical discretion under this system. Yet there is an appeal at least with respect to multi section courses. Uniformity breeds the appearance of equal treatment, a gesture dear to the heart of Americans.

Next to speak was Richard Johnstone of Griffith Law School (Australia). He describes his version of a revised curriculum to meet the changing requirements of Australian law students. He started with a description of what for him was the failures under the old system. Among the most interesting (for me, anyway) was a sense that classical legal education failed to allow students the power to construct their own realities. Additionally the traditional system created incentives for faculty to work in isolation. And the system focused on what students (and faculty) knew, rather than on what they did. It was the need to move to the latter framework that in part motivated the change in curriculum.

Professor Johnstone appeared to suggest a social constructivist approach to learning. Learning was approached as a non-hierarchical activity aimed at facilitating active student learning. The academy is to provide a place where such learning can occur. Guidance not rigidity is the touchstone. Like Professor Kift, there was a focus on refashioning courses to emphasize objectives and assessment. Particular attention was paid to class size. Though this latter objective presents a real resource issue. There was an aroma of Paulo Freire in much of what is going on in Australia (see http://www.paulofreire.org/). While Americans have tended to marginalize Paulo Freire as a crazy Brazilian Marxist, his ideas seem to be more accepted than in the past in substance if not in form.

For that purpose, Professor Johnstone noted that a set of compulsory courses were considered, for example as an addition to the curriculum, among them were legal ethics and legal theory. There was a substantial amount of resistance to incorporating both in existing courses from faculty. This mirrors, of course, the resistance to internationalizing the American law school curriculum. For the Griffith version of curricular reform, Professor Johnstone related to the reliance on Australian “best practices” as developed by elite communities within Australia. He focused on the complex and time consuming methodology for change: (1) the need to focus on a mission statement capable of assessment, (2) an overarching focus on the end product—the graduating student, (3) the cataloguing of necessary legal knowledge to be imparted, (4) a concentration on specific core areas--legal theory, interdisciplinarity, generic expertise, writing/research, and a commitment to social justice, (5) the implementation of core knowledge areas through a “group work” model, (6) legal ethics, and (5) diversity. All of these objectives and attributes were embedded in courses as vertical or horizontal subjects. Verticla subjects were to be taught at different levels of complexity throughout the academic career of the student. In this sense these subjects/objectives were embedded in the curriculum. An example was “group work,” a educational objective to be incorporated in coursework throughout a law student’s academic career.

Professor Johnstone, like Professor Kift, reminded their audience of the need for patience in the process aspects of these changes. There’s was a change to some extent legislatively mandated. Even so, it took a tremendous amount of time, faculty input, debate and administrative expertise to get from conception to something close to application.

Hulett Askew, the ABA Consultant on Legal Education spoke last. He expressed an admiration for the Australian efforts and suggested that nothing so elaborate would be required of American law schools yet. He noted, with some concern, the proliferation of ABA approved law schools. By his count there were now 198 approved law schools with two more seeking approval. In addition, there are 60-70 non-accredited law schools.

He emphasized the ABA’s move from an input to an outcome measure for approval. He suggested that the ABA was, in part, pushed to this new framework by the federal government. The Government, he suggested, was insisting on measurable criteria to support accreditation determinations. And, he suggested, the touchstone of that measure would likely be the students. He was unable to offer much guidance on the characteristics of these new outcome measures. He reminded the audience of the first step in that transformation—the imposition of minimum Bar passage requirements. But he warned that outcome measures would include a number of additional markers. A committee has been created to consider additional measures. They are expected to report sometime in June. Apparently, they may still be receiving comments and suggestions. It appears that few law schools or others have responded to an earlier call for comments.

For those seeking to provide input, comments may be sent to Echris.johnson@gm.com or Randy.Hertz@nyu.edu. Mr. Hulett also suggested that the ABA had no intention, for the moment, of legislating a single approach to outcome identifications or measures. He did suggest that such outcomes and assessments would have to be developed by each law school. Perhaps they might be tied to law school mission. The ABA would then observe the resulting systems. Of course, outcome measures tied to law school mission suggest the possibilities of further differentiation among law schools. The Australian schools provide a peek at some of the bases of fracture—between schools with progressive social justice mission and those training students for academic positions, between those training for solo practice in local environments and those training lawyers for multinational based practice, etc. The possibilities for deepening hierarchies based on mission, as well as curriculum are real.

The Conference’s lunch speakers on February 21, 2008 included Professor Paul Maharg (Glasgow Graduate School of Law) and Dean & Professor Martín Bohmer (founding dean of the Universidad de San Andrés School of Law (Argentina)).

Professor Maharg spoke on “Using 21st Century Technology to Provide Students with Practical Legal Experience.” He demonstrated an example of a complex web based simulation exertcised created with the help of a substantial grant. The simulation exercise operates a bit like The Simms.” It consists of a web based virtual reality city, with lots of people who serve as the clients with problems and their adversaries, agents, onlookers, etc. The students are broken up into teams and attempt to confront and solve their client’s problems. Faculty help create and oversee the functioning of this virtual city. Tutors serve as the front line for teaching, control and assessment. American on line learning entities, like CALI, may be interested in the approach.

There are a couple of caveats. First, the team approach is not for everyone. Professor Mahrang described the systems in place for weeding out inassimilable students (those who do not play well in groups, it seems). Those students are shunted back to traditional courses. There was at least one comment suggesting that those students are the lost likely to need additional assimilation in a group activity. Second, the project is extremely complex and resource hungry. This project is not for the resource strapped institution. On the other hand, were an institution to take it over, schools might be able to license portions for their own use. And there was some talk about licensing the current model as well.

Dean Bohmer spoke of the difficulties of creating a new law school at the Universidad de San Andés. The newness came in two parts. First, the university did not have an existing law school. Second, the law school established is meant to radically diverge from traditional pedagogies used in Argentina for the production of law student graduates. The greatest differences were evidenced by a focus on simulation exercises in the 3rd and 4th years of instruction. In addition, the law school will emphasize clinics in the last year. These clinics will focus on public interest and impact litigation. Dean Bohmer reminded the audience of the differences between civil law and customary (common law) traditional educational models. These, he suggested, were in part grounded in differences in the conception of the nature of law. As he saw it, customary law contained significant countermajoritarian, anti-democratic and constitutional elements. The lawyer and judge is involved in the protection and elaboration of law. Civil law systems, on the other hand, tended toward radical democracy or authoritarian elements. The lawyer and judge are expected to be obedient to the civil authority ad apply law. These differences helped San Andrés develop a curriculum responsive to the civil law origins of the Argentine legal system while profiting from the professionalism elements of a customary law approach.

The first afternoon panel on February 21, 2008 focused on Clinical education in India. The principal presenter was Professor M.R.K. Prasad (V.M. Salgaocar College of Law), with Anna Maria Florez (Georgia State Law Student) presenting her research on this program, along with commentary by Professor Frank Bloch (Vanderbilt).

Professor Prasad provided a detailed history of legal education in India. His paper is well worth a read. He noted that, like legal education in the rest of the English speaking world, controversy over the training of lawyers had been an important part of elite discourse in India at least in its modern form since 1885. By 1949, the Indian elite had sought to implement systems based on an emphasis of the “science” of law, privileging doctrine and reducing the place of ethics and practice in legal education. By 1977, the general view had reversed itself. Since then, clinical education along with ethics and other practice elements had become an increasingly important part of legal educational pedagogy. Part of that process involved the creation of national law schools. The dialogue continues. He spoke of the particulars of the clinical program at Salgoacar and its integration into the curriculum.

Ms. Florez spoke of her work with the legal education cells and its work to provide comprehensive experience in para legal services for Goa law students. The emphasis here was tied to the school mission—activist lawyering. Professor Bloch spoke of a social ideology for the legal profession.

The next panel provided some insight into the new forms of educational materials available for coursework. The emphasis was on the ways in which such materials were substituting for the traditional casebook. The panelists included Stephen Levett (Deputy Director, College of England & Wales), Gene Koo (Berkman Center for Internet & Society, Harvard Law School) and Professor Christian Turner (Georgia State University School of Law).

Stephen Leavitt provided a glimpse into a system in which all lectures were eliminated from the educational program. In place of the lecture system (with the usual nod to practice skills and ethics delivered by specialist), the College of England & Wales moved to a “workshop” system.

Everything revolves around the workshop. Workshop itself is structured as a focal problem from which all education occurs. A workshop is designed for each class, with the focus on practical application. Skills are privileged, doctrine serves a necessary and foundational purpose but is in a sense incidental to the practice aspects of education.

The purpose of the faculty is not to impart knowledge to a passive and receptive student body. Instead, faculty serve a role as facilitators, prompters and assessors of performance. This is student centered learning. Indeed, the object of this form of education was to provide a flexible vehicle to avoid passive learning (now deemed less than an optimal method of learning, though a great method of instruction). There are difficulties, however. It was clear, for example, that this pedagogy worked better in a litigation class than in a tax or other substantive law class. Where the object was to train consultation (solicitor’s work, for example), the workshop would have to be modified, sometimes considerably. But the College of England & Wales is confident of success. He left us with a suggestion that the future of education is a “wikis” approach—from the method of building wikepedia. That is education is moving from a hierarchy of knowledge and its control to a communal engagement in which the boundaries of student and teacher are blurred and students are encouraged to make their own knowledge. This is likely to find a harder road to acceptance in th United states than in the College of England & Wales. Though with an increased emphasis on outcome measurement and product differentiation, this form of pedagogy may appeal to schools who do not seek to rely on traditional markers of status within the educational hierarchy. There is opportunity here in the new marketplace of ideas.

Gene Koo spoke of the future of the casebook. He suggested that casebooks are more trouble than the are worth—except as a marker of prominence within the legal academic hierarchy. Other than as a status marker, casebooks are expensive, take too long to produce, are too controlling, and tend to be out of date by the time (or soon after) publication. Most of them either have too much or too little information delivered in an inflexible format that suggests the power of the author to control the production of knowledge than the value of the knowledge produced for the benefit of the reader. The basic issues are (1) who controls information, (2) who controls what is important to learn, and (3) who controls what is taught. Mr. Koo suggested that the power over these three elements ought to move from author to teacher/student.

For that purpose, Mr. Koo is involved in the development of an alternative to the casebook. He spoke of an “altlaw beta as an alternative to traditional publishers. The heart of this alternative is what he referred to as a “remix culture.” That is, texts based on a community collective of information that could be accessed, used, remixed, copied and distributed to suit the needs of the user. But for me, at least, that is the problem. American academics have become quite used to using texts for the teaching of subjects in which they might be less than completely confident. Indeed, this lack of confidence, and the increasing proclivity of administrators to assign courses without a terribly intense regard for the competences of their faculty, has given rise to a new cottage industry—the “teacher’s manual.” Once a guide to the organization of a particular text, in some cases these have become an important source for the instruction of faculty in the materials that will be taught. In a way this is great for casebook authors—it solidifies their control over knowledge; yet it also affects the ability of faculty to act independently, or even to oversee the independent use by students, of communally available information. Only those confident enough of their abilities will be able to make use of the virtual knowledge in a “remix” culture.

Christian Turner then amplified the points raised by Mr. Koo. He spoke about the rise of open source casebooks. The object is to create a community within which casebooks may be accessed, downloaded, remixed or modified, and then reposted to the community as modified. The object is to share an increasing numb er of iterations of casebooks. People can use what is available, change to suit, and then share. There is an existing experimental site where this can be experienced. See http://www.hydratext.org. In addition, CALI and Harvard’s Berkan Center are cooperating in the development of something called “eLangdell, an open commons where faculty can create and share course materials. (See http://www.cali.org/eLangdell).

The first panels on Friday, February 23, 2008, continued to consider the approaches to changes in legal education undertaken in Australia and South Africa. The first panel was entitled “Transforming Legal Education in Australia.” The `panel was moderated by Professor L. Lynn Hogue of Georgia State University Law School. Panelists included Professor Kay Lauchland (Bond University), Dean Gary Davis (Flinders University), and Deputy Dean Jeff Giddings (Griffith Law School).

Professor Lauchland spoke about the actual nitty gritty of implementing change. The basic warning was that there were no shortcuts. The origins of its curriculum change were from out of a legal education conference. Bond was a small non-elite school with a risk taking faculty sharing a set of care values and aspiration. They were not tied to elite power and incentive structures and were thus better able to approach change flexibly. Notwithstanding, the process was long and very challenging. Professor Lauchland also warned of the dangers of selling the completed project, and the importance of the care and maintenance of the project when completed. All of these functions cost a tremendous amount of faculty and financial resources.

The centerpiece of the Bond program is an incremental, integrated skills training program, a program now almost fifteen years old. The object is to develop a set of micro skills embedded in a number of courses. Legal skills is not considered a separate course but has been assigned an administrative coordinator to ensure appropriate embedding in designated doctrinal courses. Research modules are also embedded in a variety of courses. The emphasis in embedding include the following: research/analysis; writing/drafting; alternative dispute resolution; advocacy; and interviewing.

Dean Gary Davis spoke of the work of the Carrick Institute of Learning and Teaching in Higher Education (http://www.carrickinstitute.edu.au/carrick/go) and its discipline based initiative

“The goal of the Carrick Institute Discipline-Based Initiatives (DBI) Scheme is to generate discipline specific agendas that can be drawn upon for curriculum regeneration and productive engagement among stakeholders with the aim of improving learning and teaching in higher education. In designating Discipline-Based Initiatives as a priority, the Board of the Carrick Institute has drawn on a range of evidence that points to disciplinary affiliation as the primary site of engagement for the development and dissemination of good practice in learning and teaching. The DBI Scheme provides an important opportunity to encourage greater sharing of quality practice, initiatives and learning within and across discipline communities. This Scheme promotes the Carrick Institute's objectives relating to the provision of discipline-specific development, dissemination and application of good practice.”

Carrick Institute, Discipline Based Initiatives, available at http://www.carrickinstitute.edu.au/carrick/go/home/dbi (DBI papers available for download at that site).

Dean Davis described the Degree of Bachelor of Laws and Legal Practice, which was introduced by Flinders Law School in 1999. The basis of this program is grou8nded in a set of linkages/affinities. These include professional identity/legal institutions; and practical skills/professional conduct (through negotiation and drafting courses). There is also a contextual component (social, political and access to justice issues), generic professional identity, and the development of ethical disposition (treating ethical dilemmas and their resolution). He described methodology using the ethics course as an example. Methodology is divided into three categories. First, is how (mandatory or optional course). Second, is when (first course, last course or embedded materials). Third is mode of delivery (lectures, tutorials, workshops, on-line or via placement.

Jeff Giddings described the process of curriculum reform implementation through his own experiences. The process took 18 months. Authority was delegated ot a committee vested with substantial power. He urged carefully choosing committee members. His suggestion was to include representatives of opposing sides to maximize the probability that all arguments will be vetted early. There ought to be extensive consultation to achieve wide buy in among faculty and other constituencies. The focus ought to be to limit workloads where possible. Opposition mounts the more likely that reform translates into more work, and committee commitment to the process evaporates the greater the distractions of other obligations. He also urged using focus groups (especially for student input) and extensive consultation with the bar and bench.

He noted that implementation took four years in the case of Griffith. He noted the following as critical to the success of that 4 year effort:1. comprehensive discussion: free, open and genuine. Staged conversations, or conversations that are understood not to be free will backfire.2. Requires long term and extensive support from the dean and university administration; but support does not mean domination.3. Requires financial support and resources form the university4. Facilitation and mediation skills are useful for the Committee chair5. Have to aim to reach the tipping point (enough faculty support to make it more likely for the reform to happen)6. Committee should continue to meet during the approval process (even though the approval is out of their hands).7. A successful committee should have a pedant and an obsessive.8. Requires leadership continuity9. Requires outside evaluation of efforts; he noted that this is very tricky.

He noted that it was important to respond to all feedback, no matter what its quality. It is important to continue to work at home to persuade skeptics. This may require open mindedness and a willingness to be flexible and perhaps incremental. It is also important to have back up personnel to make changes when people “hit the wall.”

It was also important to remember that managing resources is important. The process usually takes longer than the attention span of most university administrators and deans. Also, while change is uncomfortable, forced change is worse. Where it is clear that change is coming (especially from outside) it is easier to take control of the process than to let it happen.

The next panel, moderated by Professor Jonathan Todres (Georgia State University Law School) focused on “Transforming Legal Education in a Transformed Society: The Case of South Africa.” The panel featured Professor David McQuoid-Mason (University of KwaZulu-Natal), Tiffany Williams and Nichole DeVries (Georgia State University College of Law students), and Edward O’Brien (Executive Director of Street Law, Inc.).

Professor McQuoid-Mason focused on a description of the chaging landscape of legal education post-Apartheid. The three key areas of concentration are law in a plural society, skills, and the training in ethical values. This is legal education deliberately focused on a changing society and aiding in the effectuation of that change through a focus on training in skills and mission. The striking thing about this discussion is the similarity with the Australian (and likely the American situation as well). The push for innovation seems to come first from the lower tiered schools least connected to the elite educational institutions and their incentive-reward structures. In this case, innovation originates in a traditionally Black school, with resistance felt most strongly in the old elite white dominated schools with the most prestige.

The student presentations focused on their work with the incorporation of the Street Law program through KwaZulu’s programs in Durban. Street Law has been incorporated as a clinical option for KwaZulu students. It seeks to institutionalize a preventative legal education program based on community interaction, law lessons to communities to raise community social consciousness. In this sense it is meant to b more than a community service project—it incorporates a skills component based on the law school’s social justice mission.

Edward O’Brien is the founder of the Street Law Program. From its origins at Georgetown in 1972 it has become a global organization. It has developed simulations as a powerful teaching tool used by a growing number of universities worldwide. Mr. O’Brien emphasized the value of legal education as consciousness raising. Again, tying into the discussion of community values and standards, he suggested that legal education had a moral mission based on social justice. That is what serves the South African legal community (at least at the non elite level) so well. Of course, I continue to wonder who controls the consciousness being raised—or for that matter the goal. In plural societies that may be a tall order to get right.

Among the more interesting panels for American legal institutions was the next panel, moderated by Professor Douglas Yarn (GSU College of Law), in which law deans from schools ranked from the 1st to the 4th U.S. News tiers, discussed “Transforming Existing Law Schools: Process.” The panelists included Suellyn Sarnecchia (New Mexico), Richard Seamon (Associate Dean, Idaho), Edward Rubin (Vanderbilt), Brett McDonnell (Associate Dean Minnesota), and Peter Joy (Professor, Washington University) What emerged quite starkly was the way in which resources and status within the American legal academic hierarchy will increasingly affect the way in which the insights of “Educating Lawyers” and any potential regulatory mandates flowing therefrom will be implemented. It is clear that the changes to come will increase the stratification of legal education in form and substance for years to come.

Dean Scarnecchia emphasized the way in which New Mexico was thinking about adapting to the Carnegie Foundation report. For her, the signature pedagogy of New Mexico was its insistence that all faculty teach in the clinical program. This accorded with the intention of New Mexico to directly confront the suggestions of “Educating Lawyers” and try to figure out how the faculty could adjust to meet its goals. She admitted this went against the grain and certainly the status structure of American legal academic institutions. But no matter. Dean Scarnecchia argued that there are strong benefits to the New Mexico model with its mandatory clinic and faculty rotation into the clinic—students are better prepared for practice, it was healthy for faculty to move between doctrinal and practice courses, and the clinical program “screams out to students.” But she noted the obstacles to the model: the tenure system, teaching to students who do not intend to practice, the class system within the legal academy between clinical and doctrinal faculty, accreditation issues, resources, and status issues. With respect to the latter point, she noted the power of the U.S: News rating system and the culture of American academic institutions. These status battles she suggested are holding the practice element back from full acceptance on a equal footing with doctrine.

Ed Rubin, speaking about his experiences as Vanderbilt dean, emphasized this last point. Like Dean Scarnecchia, Dean Ruben and Vanderbilt wanted to rethink legal education. But the focus and method of that rethinking at Vanderbilt has followed a different path. For Vanderbilt, rethinking legal education means content (incorporation of globalization issues and other new areas of law, especially as practiced at an elite level), and pedagogy (moving to a progressive learner centered education model).

The methodology of that rethinking, for Dean Ruben, involved a lot of “nemowashi”, the Japanese term for extensive consultation before formal meetings to bring people on board and avoid dissension during the meeting itself. Dean Ruben noted that change in law schools involve a never ending attention to process issues—there is never enough process to satisfy everyone. He did not like the traditional form of faculty governance through committee. He suggested that thus system was inefficient for two reasons. First, it misused faculty time that might be better send on status enhancing activity (research and writing, conferences and the like). Second, most faculty do not have sufficient experience (or interest) to govern well. Except, perhaps, with respect to appointments. The solution to this governance problem was easy—at least in retrospect. Dean Ruben simply declined to name faculty to committees. There was little protest. The power vacuum, or at least the governance vacuum, was presumably filled by those better able to govern—administrators and their agents. One might think that this would make faculty unhappy. But the opposite apparently is the case. The reason was the substitute for governance—curricular governance and money. In the dean’s own word:

The basic idea regarding the upper class curriculum is to establish concentration programs that will enable students to focus on a particular area of law during the course of their second and third years. To implement these concentration programs, faculty members were invited to join together in groups and develop a plan for a coherent curriculum in their field. The only general rules given to these groups are that the curriculum should provide more intensive training for students in its particular field, and that the curriculum should progress from the second year to the third. Faculty members can choose which group or groups to join, and cannot be excluded from any group so long as they are willing to be active participants in its activities. The Dean appointed one faculty member in each group to be its director. Each group has a budget that it can use to run conferences, invite speakers, and provide supplementary funds to its participating faculty members for travel and research. The groups also have the authority to choose short courses visitors and adjunct faculty in their area, and to negotiate with other schools or departments to develop interdisciplinary programs. The additional funds for these latter purposes are derived from decentralization of the Law School visitor and adjunct budget. To enable faculty members to devote time to participating in these groups, all administrative committees at the Law School with the crucial exception of the appointments committee were abolished. Thus, the administrative staff handles admissions, physical plant renovation, student relations, placement, and similar functions.

Edward Ruben, Conference Abstract (http://law.gsu.edu/FutureOfLegalEducationConference/abstracts.php#Ruben). An excellent idea—but one that requires money, resources, and time. But none of this focuses on the practice and ethics integrative philosophy of “Educating Lawyers.” Nor should it necessarily. Nothing in “Educating Lawyers” suggests that integration of the curriculum has to be built around single faculty members multitasking. At elite universities increasingly populated by faculty who are not licensed to practice law, integration comes with multiple faculties—doctrinal, practice and ethics. This may be beyond the abilities of all but elite law schools. The differences between Vanderbilt and New Mexico is a telling study in contrasts.

Sitting between Vanderbilt and New Mexico on the status ladder is Minnesota. Its representative, Brett McDonnell, had a slightly different perspective. Dean McDonnell focused his presentation on the first year curriculum. Minnesota has instituted a new course in the first year—The Work of the Lawyer. This course includes simulations, counseling practice, reflective lawyering and ethics. In addition, Minnesota provides a number of first year electives: (1) civil procedure, (2) international law, (3) business law, (3) perspectives on the law (team taught). Statutory interpretation is now part of a mini course integrated into the legal writing program. The process to get to these changes was complicated. It involved an initial design that was the product of many meetings, the evaluation of lots of ideas, and the generation of a substantial level of support. Implementation and evaluation of the changes presented their own difficulties. In a sense, Minnesota has chosen something of a middle course. It has segregated the integrative model suggested in “Educating Lawyers” within the general framework of an otherwise unchanged legal education structure. A few additional courses, some additional simulations and ethics courses are added. Additional faculty and related resources follow. But the bulk of the enterprise remains unchanged—and able top participate in the status projects that mark the legal education industry.

Peter Joy of Washington University spoke of outcomes focused education. He suggested the importance of benchmarking in going forward with modifications to the programs of instruction offered by accredited institutions. He notes that, like in South Africa and Australia, the loudest call for change is not coming from the comfortably established elites. In this American case, it originates with the clinical law faculty, one which, in many institutions, is subject to a de facto or de jure separate but somewhat equal status regime. Thus, Professor Joy notes that “Best Practices for Legal Education, published by the Clinical Legal Education Association, starts from the assumption that there is a compelling need for significant change in legal education in the United States.” Peter Joy, Abstract. He also noted that outcomes focused education is becoming the norm globally and will impact American legal education. “An important step is to articulate clear educational objectives for the program of instruction and, preferably, to describe those objectives in terms of desired outcomes.” Id.

Last on the panel was Associate Dean Richard Seamon. Like Penn State five years ago, the University of Idaho, a lower tiered school, is undertaking the interesting objective of creating a single educational institution on two geographically separate campuses. Dean Seamon spoke to the difficulties and opportunities of such an effort. Unlike Penn State, the University of Idaho is starting this process with a unified faculty and administration, much consultation and substantial support from all sectors. Unlike Penn State, the University of Idaho will emphasize the distinct character of each campus. The Moscow campus will emphasize Indian and natural resources law. The Boise campus will emphasize business and intellectual property law. Despite the different missions, the two causes will be bound together using the techniques of the “Educating Lawyers” educational integrative approach. Or at last that is the plan. To get there, the University of Idaho expects to use ongoing assessments to build and document competences. But the project is in its inception and much remains to be planned and done. What is clear is that “Educating Lawyers” might well play a significant role in the construction of the educational program at Idaho.

Tuesday, February 19, 2008

Fidel Castro announced that he would no longer seek to serve his country in an official capacity, as President of the Cuban Republic. In delivered remarks he declared his retirement. The physical demands of the job were too much for him, given the present state of his health. He then announced the succession of his brother Raul Castro and preparations for naming Raul’s ultimate successor. Castro Steps Down as Cuban Leader, BBC News Online, Feb. 19, 2008.

The relevant portions of the statement are worth reading for the subtlies of what is stated and what is omitted:

There were those overseas who, aware of my critical health condition, thought that my provisional resignation, on July 31, 2006, to the position of President of the State Council, which I left to First Vice-President Raul Castro Ruz, was final. But Raul, who is also minister of the Armed Forces on account of his own personal merits, and the other comrades of the Party and State leadership were unwilling to consider me out of public life despite my unstable health condition.

It was an uncomfortable situation for me vis-à-vis an adversary which had done everything possible to get rid of me, and I felt reluctant to comply.

Later, in my necessary retreat, I was able to recover the full command of my mind as well as the possibility for much reading and meditation. I had enough physical strength to write for many hours, which I shared with the corresponding rehabilitation and recovery programs. Basic common sense indicated that such activity was within my reach. On the other hand, when referring to my health I was extremely careful to avoid raising expectations since I felt that an adverse ending would bring traumatic news to our people in the midst of the battle. Thus, my first duty was to prepare our people both politically and psychologically for my absence after so many years of struggle. I kept saying that my recovery “was not without risks.”

. . . . .

To my dearest compatriots, who have recently honored me so much by electing me a member of the Parliament where so many agreements should be adopted of utmost importance to the destiny of our Revolution, I am saying that I will neither aspire to nor accept, I repeat, I will neither aspire to nor accept the positions of President of the State Council and Commander in Chief.

. . . . .

This is not my farewell to you. My only wish is to fight as a soldier in the battle of ideas. I shall continue to write under the heading of ‘Reflections by comrade Fidel.’ It will be just another weapon you can count on. Perhaps my voice will be heard. I shall be careful.

Nietzsche once suggested that individuals preferred gesture to reality. And so it goes with the transfer of power. On the heels of the announcement, the leaders of other states, both friend and foe, stepped up the rhetoric and musings.

President Bush suggested that this was the beginning of a period of transition. But as usual, our President is a day late and a dollar short when it comes to America’s Cuban policy. He released the following statement: “The question really should be what does this mean for the people of Cuba - they are the ones who suffered under Fidel Castro... they are the ones put in prison because of their beliefs. I believe that the change from Fidel Castro ought to begin a period of a democratic transition. We are going to help. The US will help the people of Cuba realise the blessings of liberty.” Reaction as Fidel Castro Retires, BBC News Online, Feb. 19, 2008. “The European Union said it hoped to relaunch ties with Cuba that were almost completely frozen under Mr Castro, while China described Mr Castro as an old friend and said it would maintain co-operation with Cuba.” Castro Steps Down as Cuban Leader, BBC News Online, Feb. 19, 2008.

The exile community in Miami also cheered wildly. But the event was widely expected, given the usual length of even a long life. So there was a bit of the pro forma to the celebrations. No travel back to reclaim what was lost—no post-Soviet euphoria yet. Thus the celebrations was tinged with a bit of sadness as well—Castro robbed his enemies of the satisfaction of his political sunset by leaving a state stronger in many ways than the one he inherited. For once in the past century, there appeared to be a smooth transition of government in Cuba. That transition is authoritarian to be sure, but it is smooth nonetheless—a rarity in traditional Cuban politics. On the other hand, Castro’s success is also the success of the American Cuban community, which he was instrumental in creating. The great success of this community has played an important part of American social and cultural development in the late 20th century.

It is amazing the heat a gesture can generate. A gesture here because the announcement has changed the substance of nothing. It served as an acknowledgement of a reality of which virtually everyone was aware. Nothing has changed. The transition has already commenced. The effective transfer of authority occurred some time ago when Castro went into the hospital. That official change was preceded by years of small steps leading to the moment of transition. I have written about aspects of those changes before. See Larry Catá Backer, On the Anniversary of the Attack on the Moncada Barracks: Cuba Moves Forward towards its Chinese Future, Law at the End of the Day, July 27, 2007, available http://lcbackerblog.blogspot.com/2007/07/on-anniversary-of-attack-on-moncada.html. Still, its announcement—the admission of an unacknowledged reality—was a more powerful event than the event itself that caused the transition to commence now nearly a year ago. Confession is a powerful element of human social organization—and of its law. Reality remains subordinate to confession, and law remains bound to the form rather than the reality of things.

This has proven to be a blessing for the current regime in Cuba. It has provided a space during which the enemies of the state were paralyzed by a desire to wait for confession even as the enemy understood the reality of the flux and vulnerability caused by Castro’s illness and the awkwardness of transition. Castro himself was well aware of this. “Mr Castro said he had not stepped down after undergoing emergency intestinal surgery in 2006 because he had had a duty to the Cuban people to prepare them for his absence. But retirement, he added, would not stop him from carrying "on fighting like a soldier of ideas", and he promised to continue writing essays entitled Reflections of Comrade Fidel.” Castro Steps Down as Cuban Leader, BBC News Online, Feb. 19, 2008. Here is great irony—the power of ideas include the cultural power of ideas as gesture.

Cuba is going its own way. Unfortunately for American policy, that way is not being influenced from Washington. Instead, instruction in transition is coming from Beijing. It would be wise for Americans to review the writings of Deng Xiaoping if they want to understand the future course of Cuban engagement. More importantly, because most Latin American states will tolerate a substantially greater political deviation from democratic ideals than tolerable to the United States, it is even more likely that Cuba will come out of its transition much more firmly in the orbit of Brazil in this hemisphere than in that of the United States.

And that is the great irony of the transition. Cuba will come out of its isolation the first satellite of Brazil. For this purpose, Brazil’s President Lula will play a pivotal role. See Larry Catá Backer, Cuba and Brazil Part II: Castro Continues His Wooing of Lula, Law at the End of the Day, Feb. 10, 2008, available http://lcbackerblog.blogspot.com/2008/02/cuba-and-brazil-part-ii-castro.html. Castro has already signaled a willingness to rely on Brazil (if only as a counterweight to the Chinese). Lula’s progressive credentials are reassuring to the present Cuban regime. Lula will find it useful for both internal and external purposes to serve as the go between for Cuba, especially with the United States. And the United States trusts Lula well enough. More importantly, the alternatives to Brazil are distasteful, whether to a Republican or Democratic regime. No one in Washington is going to want to deal with Havana through Caracas. Brasilia is a much easier point of engagement—easier even than Beijing. It will be interesting to see how Brazil, if it is clever enough, can turn its position to its benefit, becoming the port of entry to investment in Cuba—especially for American enterprises seeking a discrete engagement in the Cuban transition.

If Brazil is wise enough, it might begin now the process of elaborating the Chinese style model of engagement by sending its lawyers to Havana to help in the drafting a new corporate, commercial, partnership and joint venture codes, as well as dispute resolution systems. These might be sensitive to the supremacy of state interests but be tilted toward a Brazilian form of civil law. That might be the price extracted by a Cuban state needing local hemispheric protection. And it would be easy enough to merge Brazilian forms with Chinese models of law making. By engaging in this sort of transitional help, Brazil would significantly extend its influence in subtle but long term ways. It would bind Cuba more closely to Brazil, and increase the power of Brazil against the United States. The last benefit is probably the most Important—Brazilian engagement in this form may open significant doors to more interesting relations with China. Those relationships, pursued now through the lens of Sino-American competition for Cuba and Taiwan, may also advance Brazilian influence as a convenient go between. See Larry Catá Backer, Anticipating Fidel Castro's Death: The U.S. and China Prepare For Battle Over the Fate of Cuba, Law at the End of the Day, August 1, 2006, available http://lcbackerblog.blogspot.com/2006/08/anticipating-fidel-castros-death-us.html. It may also serve Brazilian economic interests as well. Whether the Brazilians can use their position to effect this rule of law transition to their benefit—and for the protection of the current Cuban regime will remain to be seen.

I served on the panel on Corporate Law, and presented the following talk, which will serve as the introduction to the longer paper that will follow.

The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law

We have been asked to consider aspects of the European choice of law revolution. The revolution is both vertical—shifting power over the field from Member State to the institutions of the European Union and horizontal, shifting the basis on which conflicts are resolved among competing systems. (Symeonides 2008). That consideration is meant to be undertaken with a sensitivity to Mathias Reimann’s recent plea for more comparison in choice of law. (Reiman 2001). Yet it must also be sensitive to the antagonisms as well as the complentarity of comparative law and conflicts.

“Twenty years later, the suggestion that the interdependence of comparative and conflicts law is one between potential antagonists deserves new attention. The unification process, one of the major défi of comparatists, directly threatens the conflict of laws methodology. If uniform rules expand-- be they transnational or international rules, codified or uncodified--the whole conflicts system is trumped. If uniform rules develop to such a point that they become the major source of law, they torpedo conflict of laws.”

(Fauvarque-Cosson 2001, at 414).

We hope that this exercise will provide a basis for conversation across the Atlantic, at a minimum, and perhaps reinvigorate the field in the United States. (Reed 2001). We engage in this exercise aware of the interdependency that is a consequence of the imperatives of contemporary economic globalization and its regulatory effects. “In a globalizing world of interdependent legal systems, determining which laws apply to international private transactions is of crucial importance.” (Conference Announcement 2008).

While the object of this activity is traditionally private law generally, and international private transactions in particular, I will “look beyond the traditional topics of private law (contract, tort, property) to those areas that present the most urgent and interesting problems today.” (Reiman 2001, at 645). Thus, I will examine a different aspect of this revolution in both private law and choice of law, an aspect that has become apparent only in the last decade or so. My focus is corporate law and a species of vertical choice of law. The revolution is European, and its consequences of relevance to the United States.

The problem is deceptively simple: A person buys shares and seeks to exercise shareholder rights to pressure corporate managers to adopt policies permitted but not mandated by the law of the chartering state. What law applies if the purchaser is a natural person who is a citizen of the state in which the company is domiciled? Does a different law apply if the purchaser is a (1) legal person, or (2) the government of the chartering state, or (3) a foreign state or a group of foreign states? In each case a party acting in a private capacity is seeking to engage in a discrete transaction and to exercise their rights as shareholders to the extent permitted by law. Yet it is likely that these transactions will be treated differently—a different legal regime may apply.

I will suggest to you that the revolution in private choice of law has become complicated. In a world in which corporations act like states, in a world in which states act like corporations, private choice of law is not exclusively private any more. My focus, then, is on the complicating factor of public authorities seeking the protection and advantages of private law in their non-sovereign activities. In this respect there has been a European Revolution, to be sure, especially in the field of corporate regulation. The contemporary focus has been on the destruction of the traditional choice of law system for situs of the regulation of corporate “internal affairs” through the federalization of old horizontal choice of law regimes through a reinvigorated jurisprudence grounded in non-discrimination (art. 12 EC) and freedom of establishment (art. 43 EC) within a framework that privileges the elaboration of an internal market (art. 14 EC). (Dammann, 2005). But an emerging focus is that of the regulation of interests in companies held by states in their non-sovereign capacity—golden shares. Golden shares can be defined as a power to veto certain changes in the corporate charter. More specifically it refers either to a particular class of stock or a regulatory system that gives the state a continuing power over certain fundamental corporate decisions especially with respect to formerly state owned enterprises that have been privatized. The Reuters Financial Glossery defines “golden shares as “A share that confers sufficient voting rights in a company to maintain control and protect it from takeover. The golden share prevents potential predators from buying shares and then using them to outvote the company's existing owners.” (Reuters Financial Glossary, Golden Share, 2008).

Ironically, in the form of the developing golden share jurisprudence of the European Court of Justice, this revolution has considerable conservative tendencies, tendencies that may seek to rigidly maintain the nice, safe, traditional barriers between public and private law but which ignore changes in the realities of the character of public and private institutions. I will suggest that the new choice of law revolution requires incorporation of public authorities as private actors in a private law with public effects across borders. This is choice of law as an instrument of corporate regulation. But the regulatory function involves the use by public authorities of private law for public ends. Should public law apply, should private law apply, should the form of governmental action make a difference or does only the effect of the action determine the availability of private or pubic law as the standard for governing the actions contemplated by a state? A preliminary consideration of these complications for private choice of law that serves as the focus of this paper. The field of private choice of law is no longer a closed system positing one realm of private and another of public law and in which the state is a subject but not object of law at either the domestic or multilateral level. (Michaels 2005). Nor is private law founded necessarily on direct regulation by state actors upon receptive private actors; the meaning of regulation and jurisdiction are becoming increasingly fuzzy. (Backer 2007).

Near the end of a review of the one of the latest in the recent series of “golden share” cases decided by the European Court of Justice (Commission v. Federal Republic of Germany 2007), Peter Zumbansen and Daniel Saam wondered whether: “we would even be able to see that deep into the conundrical internal life of the corporation, while applying our shareholder/stakeholder, public/private distinctions to make sense of it all. Can it be really all that difficult to heed the insightful warnings of the past not to take such categorizations as depictions of reality, but rather to understand them as the semantic representation of difficult but deliberate choices?” Zumbansen & Saam 2007, at 1049; citing Cohen, 1927; Hale 1923; Cohen 1933; and Kennedy 1976). As Zumbansen and Saam suggest, the corporation sits at the nexus of a number of legal regimes. Issues of internal regulation of corporations that operate across borders implicate a horizontal choice of law, and touch on the power of a state to regulate the economic entities operating within its brders. (Dammann 2003). To some extent, they might also implicate vertical choice of law at the supra-national or federal level. For example, in the United States, federal securities laws may pre-empt to some extent, the power of states to regulate certain matters of corporate governance. This is particularly true with respect to state anti-takeover legislation. (CTS Corp. v. Dynamics Corp. of America 1987). Issues of corporate personality implicate the scope and nature of corporate obligations in home and host states in the social and political sphere. (Backer 2006). Corporate internal governance issues, once considered strictly economic and confined to internal corporate stakeholders, have been broadened to include social and political issues and the concerns of outside stakeholders beyond the regulatory authority of the chartering state. (Hansmann & Kraakman 2002 (European context). The relationship between economic and political issues of corporate governance, of accountability to internal stakeholders and to external stakeholders implicates horizontal and vertical choice of law issues in new and largely unexplored ways. (Johns 1994). We are at a frontier between fields well worth exploring.

The recent golden share jurisprudence of the European Court of Justice has excited much commentary with respect to these nexus issues. These cases have substantially supra-nationalized the rules of Member State involvement in formerly state owned enterprises. The form in which these state interests were expressed varied. Some were cast in the form of formal privileged stake in the enterprise. (Commission v. French Republic 2002; Commission v. United Kingdom 2003; Federconsumatori v. Cmune di Milano 2007). Others suggested an involvement as the product of specifically targeted regulation. (Commission v. Protuguese Republic 2002; Commission v. Kingdom of Belgium 2002; Commission v. Kingdom of Spain 2003). Still others presented hybrid private public arrangements (Commission v. Federal Republic of Germany 2007).

These cases have been examined for their political effect. (Miller & Bock 2003). It has been suggested that the cases represent an attack on the German system of corporate governance. (Zumbansen & Saam 2007). It can be viewed as a simple elaboration of long standing principles of European Law grounded in basic provisions of the Treaties—principally the non-discrimination and free movement of capital obligations—in the amplification of a harmonized company law. (Rhodes & Appledoorn 1998). From a choice of law perspective it represents a greater effort to move choice of law issues up from the Member State to the European level, and by harmonizing, eliminating the horizontal choice of law issue. Yet, it represents far more than that.

The focus of this paper will be on the basis for determining the law applicable to Member States as shareholder—that is, as holders of interests in economic enterprises as private actors—and the substance of that law. As in the private law context, there are three foundational issues. The first is substantive law differences among competing legal regimes, that is the extent to which substantive rules differ enough to affect behavior and the legal consequences of activity. (Cf. Guaranty Trust Co. v. York 1945). The second are rules for choosing among these competing state regulatory regimes, that is the classic choice of law context. The third is the preemption of those methods by harmonization of either substantive or choice of law rules either up to a supra-national or federal level (Trautman 1992; Rustad 2007) or out to the private sector. (Backer 2007).

The paper starts with a critical examination of the development of the jurisprudence of golden share regulation in the E.U. It begins with an elaboration of the narrowest doctrinal meaning of that jurisprudence—this line of cases looks to the issue of the “rights that the State continues to hold after privatising formerly state owned enterprises.” (Grundmann & Florian 2003). It then suggests the way in which the cases also begin the construction of a new framework for considering choices of law in a new context—where a state actor seeks to enter the market or a private person. The analysis will draw attention to the difficulties of defining the private conduct of public entities in connection with other entities. States may both regulate and own an interest in economic enterprises. But those enterprises may be independent of the state that either regulates or owns an interest therein. The object will be to sketch the parameters of the current jurisprudence as well as to note those lacunae in that elaboration. Yet even when states act in their private capacity, their effects may be indirectly regulatory. As a consequence, rules applicable to private actors—including the protections of free movement of capital, and a protection for a vigorous shareholder democracy regime, may not be available to states acting as private entities, even outside of their home territories.

It is to three important lacunae that the paper turns to next: these are the questions that were avoided by the European Court of Justice in its golden share opinions, yet reflect the emerging realities of contemporary investment by public entities. The golden share cases could be said to have determined the extent to which a Member State, consistent with its obligations under the Community Treaty, could continue either to retain a superior interest in a privatized firm or by regulation, limit the discretion of the owners of that firm. But the cases might stand for substantially more—it might help define the extent of a Member State’s power to act in a private capacity, the extent to which the E.U. Treaty applies to Member States acting as private persons, the extent to which Member States may enter into relationships with corporations that are not of a regulatory nature, and the consequences for the state in terms of its liability to third parties. This point was clearly made in the December 2007 ruling of the Court of Justice in Federconsumatori v. Cmune di Milano (2007) and stressed in the earlier opinion of the Advocate General, Polares Maduro, in that case, an opinion careful to build on and expand the theoretical discussion of Advocate General Colmer from the earlier golden share cases. (Federconsumatori v. Cmune di Milano 2006, Opinion of Advocate General Maduro).

The first of the three questions touches on the power of a Member State to acquire shares in an undertaking incorporated under its laws but under a regulatory regime equally applicable to it and all other investors. Without the benefit of any special legislation applicable only to the state, can a Member State buy a large stake in a corporation, and use its power as an ordinary shareholder to its benefit? The second touches on the power of a Member State to invest in undertakings not subject to its regulatory control. Can France buy a large, perhaps even a controlling stake, in companies subject to the regulatory authority of Germany, and vote it shares, subject to ordinary company law rules, for the benefit of the citizens of France? The third touches on the consequences of Member States seeking to establish sovereign funds the purpose of which is to take significant positions in undertakings for their collective benefit. May France, Germany and Spain fund an enterprise the purpose of which is to take a large, and perhaps controlling interest, in certain undertakings for the mutual benefit of the members? The elaboration of the emerging jurisprudence, the general principles of EU law and the policies of corporate governance underlying them, to these three questions may be substantially more important in the long run in the contemporary globalized economic system. (Jones 1995).

The paper then considers the implications under public law—principally the law of sovereign immunity (Bankas 2005), another nexus point in the relationships between state and enterprise. Inherent in the golden share cases is an understanding of the nature and character of the public and private role of states and their legal effect for purposes of applying the most basic principles of EU law. But that elaboration of the nature and scope of the public/private distinction in state activity may be different, and substantially different, from that developing under the law of sovereign immunity. If states never lose their public character even when they act in a non-sovereign capacity abroad, but their actions abroad are treated as private within the host state, then the resulting tensions between the law of sovereign immunity and that of substantive state conduct might require resolution. It is worth looking at both the similarities and tensions in the parallel developments of notions of the public/private divide in state action under these two legal regimes and their implications.

The paper ends with a consideration of the insights American law might provide. American corporations are creatures of state law, but state law is a commodity that might be consumed by corporations that can freely seek reincorporation in a jurisdiction more to their liking. States may own shares in enterprises. But they may also regulate domestic corporations in away that makes it much harder for them to engage in certain transactions—the sort of regulatory interference that would be unacceptable under the golden share rules of the European Court of Justice. The template with greatest affinity to the European golden share cases may be the state anti-takeover legislation, initially disfavored and ultimately partially permitted under federal constitutional law principles. (Bebchuk & Ferrell 2001). In those cases, American courts spoke in terms that had significant potential on defining the nature of corporate regulation and the extent of state regulatory involvement in domestic corporation. At the same time, states may act as private actors, or through private actors, with a flexibility that may be unavailable in Europe. (Brotherton v. Cleveland 1999; Del Campo v. Kennedy 2008). The foundational policies that animate these results may be useful for Europeans to consider as they determine the reach of the lessons of the golden share cases, and the role of states as private economic actors—investors and consumers.

The European Court of Justice’s golden share cases provides an excellent window on a difficult issue of choice of law, and a revolutionary one. The trans-nationalization of corporate law norms provides an opportunity not only to examine the changing landscape of choice of law in private law, but also the creation of a new set of vertical choice of law issues involving a changing conception of the state in its relationships with what had been (perhaps over-narrowly considered) the exclusive the objects of its regulation. No longer a matter of which law must be applied, choice of law determinations must now increasingly consider the character of the actors involved in determining the legal regime applicable. States acting in their sovereign capacity, states acting as private stakeholder, corporations imbued with public purpose, all of these considerations will tend to change the face of choice of law in corporate law in the coming decades.

----------, The Future f Co-Determination After Centros: Will German Corporate Law Move Closer to the U.S. Model?, 8 FORDHAM J. CORP. & FINANCIAL L. 607 (2003).

Bénédicte Fauvarque-Cosson, Comparative Law And Conflict Of Laws: Allies Or Enemies? New Perspectives On An Old Couple, 49 AM. J. COMP. L. 407 (2001).

Stefan Grundmann and Florian Möslein, "Golden Shares - State Control in Privatised Companies: Comparative Law, European Law and Policy Aspects" (April 2003). Available at SSRN: http://ssrn.com/abstract=410580

Ralf Michaels, "Globalizing Savigny? The State in Savigny's Private International Law and the Challenge of Europeanization and Globalization" (September 2005). Duke Law School Legal Studies Paper No. 74 Available at SSRN: http://ssrn.com/abstract=796228.

Search This Blog

Translate

ORCID

ORCHID QR Code

ACI

A Top 100 Blog--Online Schools.org

Follow by Email

PRINTING INDIVIDUAL POSTS

Individual postings may now be more easily printed. To print, FIRST, click on the title of the essay you want to print, THEN scroll down to the "Labels" line near the end of the essay and CLICK on "print this article."

Subscribe To

Cluster Maps

Wikio

Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

BACKERINLAW--PERSONAL WEBSITE

Here you can find my published work, manuscripts, presentations, and more!

Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.